State v. Tapscott

[Cite as State v. Tapscott, 2012-Ohio-4213.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 MA 26
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ALLEN TAPSCOTT )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas, Mahoning County, Ohio
Case No. 10 CR 1267
JUDGMENT: Convictions Affirmed.
Remanded for Resentencing.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul Gains
Prosecuting attorney
Atty. Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones
42 N. Phelps Street
Youngstown, Ohio 44503-1130
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: September 14, 2012
[Cite as State v. Tapscott, 2012-Ohio-4213.]
VUKOVICH, J.
{¶1} Defendant-appellant Allen Tapscott appeals from the judgment of the
Mahoning County Common Pleas Court which sentenced him after a jury found him
guilty of aggravated burglary and two counts of aggravated robbery. He argues on
appeal that he was prejudiced by the admission of testimony that the female victim
was pregnant and that her pregnancy was high-risk. He also urges that the two
counts of aggravated robbery, one for each victim, should have been merged. For
the following reasons, these arguments are overruled, and his convictions are
upheld.
{¶2} However, we find a plain error in the trial court’s decision to sentence
appellant concurrently on offenses that the court merged as a merged offense
receives no sentence. Consequently, we remand for resentencing where the state
can elect the offenses that will receive sentences.
STATEMENT OF THE CASE
{¶3} As a result of a reported home invasion at the Westlake Terrace
Apartments, appellant was indicted on two counts of aggravated robbery with a
deadly weapon, one count of aggravated burglary with a deadly weapon, three
firearm specifications, and one count of having a firearm while under disability. The
last count was severed for a bench trial to take place after a jury trial on the first three
counts.
{¶4} At the jury trial, the male victim testified that he was at his girlfriend’s
apartment at the Westlake projects on November 1, 2010 at 6:50 p.m. when he heard
noises at the front door (which had been barricaded) and then heard someone say,
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“get the money, I know he has money.” (Tr. 258). At that point, appellant entered by
way of the back door. The victims knew appellant through the neighborhood and
because the female victim had helped appellant set up a Facebook page a few days
before. (Tr. 257, 309).
{¶5} The male victim stated that appellant pointed a gun at the female victim
and said he “was going to shoot her, kill my kid, kill me.” (Tr. 255). According to the
victim, appellant demanded pills and money. The male victim replied that he could
have the pills on the counter (which were prenatal vitamins) and that he had money
at the neighbor’s apartment. Appellant then allowed the female victim to leave to
retrieve the money. The male victim testified that appellant ransacked the apartment
while pointing the gun at him and threatened to hit him in the head with the gun if the
female did not return. (Tr. 255, 260). It was reported that appellant took $40 cash
and a $200 money order and then left when he heard sirens. (Tr. 260, 295).
{¶6} The female victim confirmed that appellant entered through the back
door, pointed a gun at her, threatened to kill her and the male victim, and asked for
pills and money. (Tr. 304, 306). She also heard someone instruct appellant to get
the money. (Tr. 307-308). She related that when appellant allowed her to leave, she
went to the neighbor’s apartment and called the police. (Tr. 308). This neighbor
confirmed that the female victim, who was crying and upset, asked to use his
telephone because her boyfriend was being robbed. (Tr. 351).
{¶7} A police officer testified that when they encountered the male victim he
had been following appellant to see whether he entered another apartment. The
victim appeared frantic and seemed relieved to see the police. (Tr. 368). The officer
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confirmed that the apartment had been ransacked, noting that he saw a computer
and electronic equipment on the floor. (Tr. 373). The officer stated that the victims
immediately began making plans to move from the apartment that night. (Tr. 374).
The officer also testified that the female victim seemed very scared when she
returned to pack her belongings. (Tr. 377).
{¶8} Appellant then testified in his own defense. Appellant stated that the
male victim had been looking for a gun for his brother. Appellant asked around and
was able to procure one that he knew did not work. (Tr. 514-515). Appellant stated
that on October 29, 2010, he arrived at the male victim’s apartment with the gun. He
related that the victim called his brother, and when the brother arrived, appellant sold
him the gun for $120. (Tr. 517-518). The female victim then helped appellant set up
a Facebook page. (Tr. 519).
{¶9} Appellant said that the male victim called him on October 30 to say that
his brother wanted his money back because the gun did not work. (Tr. 520).
Appellant testified that he originally agreed to refund the money when he was able to,
but when the male victim kept calling him, he told him that he would not be refunding
the money, which upset the male victim. (Tr. 520). Appellant then related that when
he went to the apartment complex on October 31, the male victim wanted to fight
him, and so, they nearly engaged in a knife fight in front of a group of people at the
projects. (Tr. 521-522). He said he was back at the complex on November 1 (the
day of the reported incident) and that he saw the female victim outside but did not
speak to her and did not enter their apartment or rob them. (Tr. 525).
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{¶10} The jury found appellant guilty on all three counts with firearm
specifications. The court thereafter found him guilty of the weapons under disability
charge. In a January 28, 2011 entry, the court sentenced appellant to ten years on
the first three offenses, three years on each firearm specification, and five years on
the weapons under disability charge. The court merged the firearm specifications
into one specification. The court also held that the aggravated burglary would merge
with aggravated robberies and ran those sentences concurrently. The court refused
appellant’s request to merge the two aggravated robberies as well and ran these
sentences consecutively to each other, to the sentence on the specification, and to
the weapons sentence, for a total of twenty-eight years. The within appeal followed.
ASSIGNMENT OF ERROR NUMBER ONE
{¶11} Appellant’s first assignment of error provides:
THE TRIAL COURT ERRED IN ALLOWING IN EVIDENCE OF THE
ALLEGED VICTIM’S ‘HIGH RISK’ PREGNANCY IN
CONTRAVENTION OF RULES 401, 402, AND 403 OF THE OHIO
RULES OF EVIDENCE, WHICH PROSCRIBE ADMISSION OF
IRRELEVANT AND PREJUDICIAL EVIDENCE.
{¶12} Appellant complains here about various places in the testimony where
the jury was informed that the victim was in the midst of a high-risk pregnancy at the
time of the offense. The jury was not informed that within days of the offense, she
gave birth and the baby died. It was this latter fact that the defense asked to be
excluded in their written motion in limine where they asked the court to prohibit the
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state from introducing evidence of the female victim’s medical condition after the
robbery.
{¶13} In discussing this motion before trial, the prosecutor asked for guidance
on how to proceed and noted that the victim’s condition helped emphasize her
credibility. (Tr. 8-9). The court agreed that the death of the baby was not pertinent
but opined that the fact of pregnancy seemed unavoidable. (Tr. 10-12). The court
suggested that the state stick to the elements of the offenses and pointed out that
certain facts may become pertinent depending upon cross-examination. (Tr. 10-11).
{¶14} The male victim testified first. When the prosecutor asked if he lived in
the apartment with his girlfriend, he answered: “I was staying with her. She was
going through a high-risk pregnancy and she needed me there with her at all times.”
(Tr. 252-253). When asked who was home during the incident, the male victim
added to his answer, “She was laying on the couch. Like I said, she was a high-risk
pregnancy and she wasn’t allowed to do nothing.” (Tr. 254). As aforementioned, he
also testified that appellant “said he was going to shoot her, kill my kid, kill me.” (Tr.
255).
{¶15} Thereafter, when the prosecutor asked the female victim who lived with
her at the apartment, she answered, “It was myself, but I was going through a high-
risk pregnancy so my boyfriend was there with me.” (Tr. 302). The prosecutor asked
how far along she was at the time to which she responded that she had been five
months pregnant. (Tr. 302-303). The prosecutor then inquired, “And as far as being
a high-risk pregnancy, what orders did you have from the doctor?” She replied, “I
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was supposed to be on bedrest * * * I had to take two medicines for my contractions
* * *.” (Tr. 303).
{¶16} The responding officer testified in pertinent part: “He was upset. He
stated several times that he was very scared for his life as well as his girlfriend’s life.
His girlfriend was pregnant at the time. He immediately began to make plans of
moving out of the apartment.” (Tr. 374). When asked to describe the female victim’s
demeanor, the officer responded in part, “she was scared for her life and her
pregnancy. I guess she had mentioned it was high risk and, you know, it was a very
stressful situation for her to be in.” (Tr. 377).
{¶17} Appellant first claims that all of this testimony about a high-risk
pregnancy was not relevant and thus was inadmissible under Evid.R. 401 and 402.
Appellant alternatively argues that even if the evidence was relevant, it should have
been excluded under Evid.R 403(A) or (B).
{¶18} Initially, it must be pointed out that the defense’s written motion in limine
did not ask for exclusion of evidence of a high-risk pregnancy. That is, the motion
specifically asked to exclude evidence of the victim’s medical condition after the
offense, not before or during the offense. Accordingly, the trial court agreed that the
death of the baby should not be discussed, and it was not in fact discussed at trial.
The court did not prohibit testimony on the pregnancy and in fact noted that such
testimony appeared unavoidable. Thus, contrary to appellant’s suggestion, he did
not file a motion in limine on the topic of pregnancy, and the court did not rule to
exclude such evidence.
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{¶19} In any event, a motion in limine does not preserve an issue. A motion
in limine is a preliminary, precautionary, tentative, and anticipatory ruling on the
potential treatment of an issue to be later resolved when it arises in the context of the
trial where the trial court may change its mind based upon circumstances that are
developed. State v. Grubb, 28 Ohio St.3d 199, 201-203, 503 N.E.2d 142 (1986). A
party's failure to reassert the matter at the proper point at trial constitutes a waiver of
any challenge, regardless of the disposition made for a preliminary motion in limine.
Id. at 203.
{¶20} As the defense did not object to any of the mentions of pregnancy
during the testimony, the issue was waived. See id.; State v. Hancock, 108 Ohio
St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 59 (objecting party must challenge
evidence during trial when issue is presented in full context ). See also Evid.R.
103(A)(1) (error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected and a timely objection was
made specifically stating the grounds of the objection).
{¶21} Where no objection is entered at a time when the error can be
corrected, the court may recognize plain error if substantial rights are affected. See
Crim.R. 52(B). Plain error is a discretionary doctrine to be used with the utmost of
care by the appellate court only in exceptional circumstances in order to avoid a
manifest miscarriage of justice. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶
62. The doctrine can be employed only where there was an obvious error affecting
substantial rights in that the error was clearly outcome determinative. Id.; Hancock,
108 Ohio St.3d 57 at ¶ 60.
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{¶22} However, there is no error here, plain or otherwise. The admission or
exclusion of relevant evidence rests within the sound discretion of the trial court.
State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). It is within the sound
discretion of the trial court to apply its common experience and logic to determine the
relevance of evidence. State v. Lyles, 42 Ohio St.3d 98, 99-100, 537 N.E.2d 221(1989).
{¶23} Contrary to appellant’s position, the relevancy test does not require the
evidence to directly prove an element of the offense. Relevant evidence is defined
as “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Evid.R. 401. Relevant evidence is admissible
unless prohibited by another rule, statute, the constitution. Evid.R. 402. Evidence
which is not relevant is not admissible. Evid.R. 402.
{¶24} The fact that the victim was pregnant was admissible to explain
appellant’s own declaration that he “was going to shoot her, kill my kid, kill me.” (Tr.
255). Appellant’s brief seems to acknowledge this as it focuses on the testimony
disclosing that the pregnancy was high-risk. However, this fact is also relevant for
various reasons.
{¶25} Whether the victim’s story about appellant entering her apartment with
a firearm and robbing them is true is a “fact that is of consequence” to the action.
See Evid.R. 401. The fact that she was in the midst of this high-risk pregnancy has
“a tendency” to make it less likely that she would entangle herself in this police
investigation and engage in the actions taken that evening. See id. As the state
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points out, a female subjected to bedrest for a high-risk pregnancy while taking two
medications to stop early contractions would not typically leave her apartment when
the baby’s father was present, walk to a neighbor’s residence five doors down, and
call 911 to report a robbery unless that robbery was actually occurring. Her state of
being on bedrest also makes it less likely that she would thereafter pack her
belongings and leave the apartment if the robbery never occurred. The neighbor’s
testimony confirmed that she came over to call the police, and the police officer’s
testimony confirmed that she packed items in order to stay elsewhere that night and
that the apartment had been ransacked.
{¶26} The jury is entitled to all information that might bear on the accuracy
and truth of a witness’s testimony. United States v. Abel, 469 U.S. 45, 52, 105 S.Ct.
465, 83 L.2d 450 (1984) (dealing with witness bias). The credibility of a witness is
always a relevant issue. State v. Curry, 11th Dist. No. 92-A-1738 (June 30, 1993);
State v. Lumpkin, 2d Dist. No. 90CA82 (Oct. 25, 1991). See also State v. Oddi, 5th
Dist. No. 02CAA01005, 2002-Ohio-5926, ¶ 32. The evidence contested here makes
it more probable that the victim is telling the truth. See State v. Jackson, 107 Ohio
St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 70.
{¶27} Furthermore, the fact of pregnancy and even that it was high-risk was
admissible to explain the pill bottles in the apartment which contained the female
victim’s prenatal vitamins and two medications prescribed to stop contractions. This
is relevant background information regarding how appellant may have seen the
prescription pill bottles in the apartment when he was there getting assistance with
his Facebook page a few days before and regarding why he immediately asked for
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the pills when he broke into the house. For all of these reasons, the evidence
regarding the victim’s high-risk pregnancy passed the test for relevancy pursuant to
Evid.R. 401 and 402.
{¶28} Pursuant to Evid.R. 403(A), there is a mandatory exclusion of relevant
evidence whose probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury. Moreover, the trial
court has discretion to exclude relevant evidence whose probative value is
substantially outweighed by considerations of undue delay, or needless presentation
of cumulative evidence. Evid.R. 403(B).
{¶29} Initially, it should be reiterated that no one informed the jury that the
victim went into labor shortly after the offense or that she lost the baby. Nor did
anyone suggest that the victim gave birth prematurely as a result of the stressful
situation and her inability to abide by strict bed rest that evening.
{¶30} As aforementioned the high-risk pregnancy was relevant to the victims’
credibility as to whether the offense occurred and as background for the pill bottles in
the apartment. The victims’ credibility was key here. This is especially true since the
defense revolved around a claim that the victims ransacked their own apartment and
made up the story of the burglary and robbery in retaliation for appellant selling the
male victim’s brother a broken gun for $120. Thus, contrary to appellant’s argument,
the probative value of the testimony was not minimal.
{¶31} Generally, all evidence presented by the prosecution is prejudicial to
the criminal defendant, and as the rule speaks only to prejudice that is unfair, there is
a preference for admissibility. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-
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6391, 819 N.E.2d 215, ¶ 107; State v. Frazier, 73 Ohio St.3d 323, 333, 652 N.E.2d
1000 (1995). The issues were straightforward in this case; nothing confusing was
presented. The case dealt with victims claiming robbery and burglary versus a
defendant claiming that he was falsely accused due to the male victim’s desire to
avenge his brother’s loss of $120 due to the purchase of a broken gun. Therefore,
had an objection been lodged at trial, the trial court would not have abused its
discretion in determining that the probative value of the high-risk pregnancy was not
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury. See Evid.R. 403(A).
{¶32} As for Evid.R. 403(B), the probative value of the testimony that her
pregnancy was high-risk was not substantially outweighed by undue delay or the
needless presentation of cumulative evidence. The evidence on this topic was
abbreviated, was not needlessly cumulative, and caused no delay. As such, this
assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{¶33} Appellant’s second assignment of error contends:
THE TRIAL COURT ERRED IN NOT MERGING MR. TAPSCOTT’S
SENTENCES FOR AGGRAVATED ROBBERY AGAINST TWO
ALLEGED VICTIMS.
{¶34} Appellant argues that the two aggravated robberies should be merged.
Appellant contends that the mere existence of two victims does not automatically
result in sentences for two offenses. He states that a defendant must commit the
offenses separately against each victim in order to be sentenced on both.
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{¶35} Pursuant to R.C. 2941.25:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant
may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate
animus as to each, the indictment or information may contain counts for
all such offenses, and the defendant may be convicted of all of them.
{¶36} Under the old analysis for evaluating whether offenses are allied
offenses of similar import or offenses of dissimilar import, the court was to compare
the elements of the offenses in the abstract (without considering the defendant’s
conduct) to determine whether the elements corresponded to such a degree that the
commission of one offense would result in the commission of the other offense.
State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 14; State
v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999). If they were of dissimilar
import, sentencing could proceed on both; if they were allied offenses of similar
import, the court proceeded to look at the defendant’s conduct to determine whether
they were committed separately or with separate animus. Cabrales, 118 Ohio St.3d
54 at ¶14, 31; State v. Jones, 78 Ohio St.3d 12, 14, 676 N.E.2d 80 (1997).
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{¶37} Now, however, courts are permitted to consider the defendant's
conduct in determining whether the offenses are of similar import. State v. Johnson,
128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061, syllabus. All six justices
that sat on Johnson agreed with the following syllabus law: “When determining
whether two offenses are allied offenses of similar import subject to merger under
R.C. 2941.25, the conduct of the accused must be considered. (State v. Rance
(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)” Johnson, 128 Ohio St.3d at
syllabus. Besides this statement, Johnson did not provide us any new legal
precedent as there was no majority opinion. See State v. Gardner, 7th Dist. No.
10MA52, 2011–Ohio–2644, ¶ 23.
{¶38} We begin by noting that appellant relies on case law that is neither
binding nor on point. For instance, appellant cites to a dog neglect case, which
neither involved human victims nor actions as neglect is the absence of action. See
State v. Bybee, 134 Ohio App.3d 395, 731 N.E.2d 232 (1999). That court specified
that the neglect was one course of conduct and there did not exist sufficient separate
conduct to allow sentencing on each offense. Id. at 401.
{¶39} In another case, a defendant robbed a store with three employees, and
he was charged with one offense per employee. State v. Howard, 1st Dist. No. C-
020389, 2003-Ohio-1365. The court stated that it was well-settled that when an
offender robs different victims of different property in a short period of time, he can be
convicted of each robbery because there is a separate animus for each offense, i.e.,
a separate victim. Id. at ¶ 15. The court concluded that the defendant should only be
sentenced on one robbery because his intent was to rob the store, there were not
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separate acts separated by time or conduct, and he did not attempt to steal from the
three employees. Id. at ¶ 14-15. Thus, this holding does not support appellant’s
position here.
{¶40} Appellant also cites a case explaining that aggravated robbery charges
against multiple victims would not merge because the defendant took property from
each victim by threat and thus with a separate animus. State v. Smith, 8th Dist. No.
95243, 2011-Ohio-3051, ¶ 79. Appellant apparently focuses on the following
statement in the Smith case: “This is not similar to a fact pattern where an individual
fires a gun into a crowd of people, which arguably could create allied offenses of
similar import in the event the offender is charged with multiple counts of felonious
assault for each victim.” Id., citing State v. Sutton, 8th Dist. No. 90172, 2011–Ohio–
2249. However, the latter fact pattern is distinguishable from our case, and that court
used the word “arguably.” Finally, regarding appellant’s attempts to use the dicta or
reverse inference of these cases, the specific conduct occurring in a particular case
is relevant at every step of the analysis and every case has different levels of conduct
toward each victim.
{¶41} The Ohio Supreme Court has stated that multiple sentences for a single
act committed against multiple victims is permissible where the offense is defined in
terms of conduct toward “another” as such offenses are of dissimilar import; the
import being each person affected. State v. Jones, 18 Ohio St.3d 116, 118, 480
N.E.2d 408 (1985). Thus, a person can be sentenced on a count of aggravated
vehicular homicide for each victim killed because the offense is defined in terms of
recklessly causing the death “of another.” Id. Similarly, a person who set one fire to
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a structure could be sentenced for six counts of aggravated arson, one for each
victim, because arson was defined in terms of creating a substantial risk of serious
harm to another person. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776
N.E.2d 26, ¶ 48.
{¶42} Appellant was charged with aggravated robbery for attempting,
committing, or fleeing after committing a theft offense while having a deadly weapon
on or about his person or under his control and either displaying, brandishing,
indicating possession, or using that weapon. See R.C. 2911.01(A)(1). Appellant was
not charged with the type of aggravated robbery involving the inflicting or attempting
to inflict serious physical harm “on another.” See R.C. 2911.01(A)(3). Still, in order
for the defendant to display, brandish, indicate possession of, or use a weapon, he
would have done so to the person he is robbing; thus, the offense is essentially
defined in terms of conduct toward another. Moreover, theft is an element of
aggravated robbery, and theft involves the taking of property from “another.” See
R.C. 2911.01(A), citing R.C. 2913.01, citing R.C. 2913.02 (property of another). See
also State v. Snuffer, 8th Dist. Nos. 96480, 96481, 96482, 96483, 2011-Ohio-6430, ¶
4 (applying Jones to theft offenses). In accordance, under the Jones and Franklin
analysis, the court was permitted to sentence appellant for one aggravated robbery
per victim.
{¶43} Additionally, Jones and Franklin involved one act by the defendant that
happened to affect two victims. The case before us involves various acts purposely
aimed at two victims. And, we are now permitted to view these acts in the first step
of the analysis.
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{¶44} Moreover, finding offenses to be of dissimilar import is merely one way
to sentence on both offenses. See R.C. 2941.25(B). If the conduct results in two or
more offenses of the same or similar kind committed separately or with separate
animus to each, sentencing can also proceed on both. Id.{¶45} In this case, circumstantial evidence showed that appellant knew he
would be robbing both of these particular victims before he even entered the
apartment. And, he engaged in various acts toward each victim. He first pointed his
weapon at the female. He then threatened to kill both victims. When neither could
produce money, he ordered the female to leave the apartment to retrieve money held
by the neighbor while holding the male victim in the apartment. He pointed the gun
at the male victim during this time and threatened to hit him in the head with the gun.
He stole items from the apartment that belonged to both victims during this time: the
money order for the rent on the female’s apartment and $40 belonging to the male
victim. In fact, aggravated robbery only requires attempting to commit theft while
having and displaying the deadly weapon; it does not require actual theft, and
appellant attempted to deprive both victims of pills and more money.
{¶46} In conclusion, appellant knew he would be approaching two victims,
each victim was threatened, a gun was pointed at each at different times, the victims
were collectively asked for money and pills, and each was subjected to a different
consequence (the male held hostage while the female was instructed to leave the
apartment to retrieve money). Considering all of appellant’s conduct here, the
offenses were not allied offenses of similar import as the different victim makes them
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of dissimilar import and/or that they were committed separately or with separate
animus to each. Consequently, appellant’s argument here is overruled.
{¶47} There is another issue we shall address here that is not raised by
appellant. The trial court merged the firearm specifications so that only one remained
for sentencing and merged the aggravated burglary with the aggravated robberies so
that only the robberies remained for sentencing.1 Although the trial court merged
these offenses, the court still entered sentences on all offenses, apparently believing
that merger is satisfied by running the sentences on the merged offenses
concurrently.
{¶48} However, when a court merges offenses, it cannot run the sentences
for the merged offenses concurrently. Rather, the court must refrain from entering a
sentence on one of the merged offenses. “Sentencing concurrently on merged
counts does not satisfy the merger doctrine as no sentence at all should be entered
on one of the two merged counts.” State v. Gardner, 7th Dist. No. 10 MA 52, 2011-
Ohio-2644, ¶ 24, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922
N.E.2d 182, at ¶ 17.
{¶49} Failure to merge allied offenses of similar import constitutes plain error
even where a defendant's sentences are run concurrently because “a defendant is
prejudiced by having more convictions than are authorized by law.” State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31 (plain error
1
The propriety of these mergers was not contested by the state on appeal. See App.R. 5 (on
seeking leave to appeal); RC. 2945.67(A) (appeal by state). In fact, the state clearly acknowledged
the necessity of merging the firearm specifications. (Tr. 10). And, the state admitted that the trial
court was permitted to merge the aggravated burglary with the aggravated robberies if it so wished.
(Tr. 9-10).
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even where it is a jointly recommended sentence), citing State v. Yarbrough, 104
Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96–102.
{¶50} Cases such as this are remanded for a limited resentencing hearing so
that the prosecution can select which of the merged offenses it wishes the court to
enter a conviction and sentence the defendant on. State v. Whitfield, 124 Ohio St.3d
319 at ¶ 21-22 (finding that appellate court impermissibly intruded on the state’s right
to elect by ordering which offense to vacate); Maumee v. Geiger, 45 Ohio St.2d 238,
244, 74 O.O.2d 380, 344 N.E.2d 133 (1976).
{¶51} In accordance, we remand for the prosecution to select whether it
wishes the defendant to be sentenced on the two aggravated robberies but not the
aggravated burglary or on the aggravated burglary and one of the aggravated
robbery counts. We note that the firearm specifications were all the same and just
generally merged into one specification negating the need for an election regarding
the specifications on remand. Still, the trial court is instructed to correct its sentence
on the specifications so that a sentence is only pronounced on one firearm
specification (as opposed to pronouncing sentence on all three and running them
concurrently).
{¶52} Convictions affirmed. Sentence reversed in part for resentencing.
Donofrio, J., concurs.
Waite, P.J., concurs.